Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
THE HONOURABLE MR JUSTICE TUGENDHAT
Between :
| Benjamin Gray | Claimant |
| - and - |
|
| Laurie Avadis | Defendant |
The Claimant appeared in person
Miss Lorna Skinner (instructed by Reynolds Porter Chamberlain) for the Defendant
Hearing dates : 11 July 2003
Judgment
Mr Justice Tugendhat :
In July 2001 Mr Gray, who I shall refer to as the claimant, instructed Laurie Avadis, who I shall refer to as the defendant, to represent him in family proceedings. His initial instructions to the defendant were to apply for contact with, and Parental Responsibility ("PR") for, his two sons who were then residing with their mother, a Miss Joanna Dadd (who later married her then partner Martin Chambers). In late November 2001 the defendant ceased to act for the claimant at the claimant’s request. By that time no application for PR had been made.
The defendant has subsequently made a complaint to the Law Society. That complaint was taken up by the Office for the Supervision of Solicitors ("OSS"). The present proceedings arise out of the response that was made on two occasions by the defendant to communications from the OSS concerning the claimant’s complaint. By proceedings issued on 11 December 2002 the details of the claimant’s claim appear as follows:
‘Mr Avadis has stated in two letters to the Law Society that the claimant "… clearly suffered from mental illness" and has further stated that he doubted I would ever have contact with my two sons (in another letter to the Law Society) "given his [my] conduct and the state of his [my] mental health…" I have never been found to have a mental illness and my conduct towards Mr Avadis was always civil. Mr Avadis is only making this malicious slander because I have proved to the Law Society that he defrauded me (as his client) into believing he was obtaining PR for me when he was not doing so. Value: expect to recover more than £15000. I wish my claim to issue in the High Court because I feel (a) the nature of Mr Avadis’ offences to be of a nature so severe as to warrant a major fiscal penalty and (b) to expose his wrong doing to prevent more of the same.’
The Claimant’s case was further particularised in the form of a letter dated 13 December 2002 addressed to the High Court marked for the attention of Master Leslie. That document has been treated as the Particulars of Claim. That is stated in the Defence which was served on 28 January 2003. The Defence pleads, in relation to each publication complained of, that it was on an occasion of absolute privilege. Alternatively it is pleaded that each occasion was one of qualified privilege. There is further, under the heading justification, an intimation that the defendant would intend to plead justification, should the action proceed but there are at that stage no particulars. In relation to the claim headed "conspiracy to defraud", which appears in the letter of 13 December 2002, the defendant declines to plead to this as an abuse of process and he intimates an application to strike out.
As pleaded in the letter of 13 December, the case in fraud is as follows:
‘In a copy of a letter addressed to the respondent, Mrs Joanna Chambers (dated 7 August 2002), Mr Avadis states that he has: "…now submitted the Application for Public Funding in this case so the certificate should be granted and proceedings issued for contact and Parental Responsibility"… however as can be seen on pages [blank] this is a false, indeed…. even a perjurious statement in a material particular, as on the Form C2 (the court document needed to obtain PR) there is no mention of parental responsibility on that application form. Ms Maskell of the Office for the Supervision of Solicitors upheld my complaint that Mr Avadis had claimed to be seeking PR on my behalf (and was in fact being paid by the Legal Services Commission to do so) when he was clearly not doing so.’
In due course and after further exchanges, a case management conference was fixed and adjourned to 2 May 2003. Both parties provided skeleton arguments for that hearing. At that hearing Master Leslie gave a judgment on the questions whether the defence of absolute privilege was bound to succeed so that the claim was bound to fail. Alternatively, he considered whether the claim had any reasonable prospect of success in the light of this pleaded defence.
The claimant appeared before the Master in person, and in his judgment the Master stated that he conducted his case with great temperance and no small amount of intelligence. I make the same observation about the conduct by the claimant of his case before me.
The Master concluded that letters to the OSS were absolutely privileged. He said that he had not found the matter easy and gave permission to the claimant to appeal. He did not rule on qualified privilege, or on the alternative claim in fraud. The claimant accordingly appealed by notice dated 15 May 2003. On 28 May 2003 the defendant, by an application notice, applied for an order pursuant to CPR3.4 (2) that the claimant’s claims for libel and fraud be struck out, alternatively, pursuant to CPR 24.2, that summary judgment be entered for the defendant on the libel claims. The grounds of the application were that the claimant’s statement of case disclosed no reasonable grounds for bringing the claims, abuse of process, and failure to comply with an order of the court dated 15 January 2003. This order related to the form of the claimant’s pleadings, which did not comply with the requirements of CPR Part 53. An alternative basis for the application is that the words complained of were published on an occasion of qualified privilege and there is no reasonable prospect of the claimant establishing malice. The claimant’s Appeal and the Defendant’s Application Notice came on before me together.
I turn now to set out in more detail the circumstances upon which the words complained of were published. On 26 April 2002 a letter was written by the OSS (the title to the letter was ‘The Law Society Office for the Supervision of Solicitors’) to the defendant informing him that the claimant had complained about the Defendant’s failure to follow instructions. They did so in these terms:
‘Mr Gray says that when he first instructed you in July 2001 he advised you that he wished to make an application for Parental Responsibility and contact with his children. In your letter of 11 July 2001 to Mrs Chambers, you state that Mr Gray "wishes to have contact with his son" and that he "also requires Parental Responsibility so that he can have a say in the important decisions in the boys live". It therefore seems that you accepted Mr Gray's instructions to apply for both contact and parental responsibility. Would you agree? On the form C2 sealed by the court on 8 October 2001 paragraph 2 of the form lists "the order (s) or direction(s) you are applying for". With reference to both children, the order applied for is stated to be "defined contact order". At paragraph 4 of the same form, reasons for applying for contact are stated. There is no mention of parental responsibility at that section or otherwise on the form. In your telephone conversation with Ms Maskell of 22 February 2002 you confirmed that the Public Funding Certificate (PFC) was granted for parental responsibility and contact. Please forward a copy of the PFC to me. In the same telephone conversation you advised that it is often the case that Parental Responsibility is not applied for on the form C2 but that this is requested at "the Hearing". Please confirm the dates of any Court Hearings in this matter and provide copy attendance notes for each. Please specifically confirm whether an application was made for Parental Responsibility at any such hearing. If it was, please provide evidence by way of an attendance note/court order. If Parental Responsibility was not applied for at any Hearing, please let me have your comments as to why this was the case."
That letter further stated: ‘Failure to deal with complaints, or to respond promptly to our correspondence, may lead to disciplinary action (or increased compensation if it is found that the professional service you have provided to a client is inadequate.)’ It is signed by the caseworker over the words Client Relations Office.
On 1 May 2002 the Defendant wrote a response to that letter, which includes the first of the words complained of in the Claim Form. The relevant passages are as follows:
‘It is clear that Mr Grays initial instructions were to apply for contact and PR and that the C2 only contained an Application Form contact. I do not have the file at present but recall that Mr Gray was extremely particular in all matters. I cannot recall whether he and I agreed that we would not include PR in the Court Application but I do recall that he made no comment about the same at the first hearing. As I say, I do not have the file so I cannot send you a copy of the PFC but it was, I believe for Contact and PR. The only court hearing that I attended for Mr Gray was at the High Court on 21 October 2001 when the case was transferred, I believe to Portsmouth. This was a conciliation hearing. I enclose my attendance notes. It was extremely difficult to take Mr Gray’s instructions and I felt extremely concerned by his behaviour towards me on a number of occasions. The hearing to which the note refers was memorable because the Respondent who was pregnant was extremely frightened of Mr Gray. Not long after Mr Gray was sectioned and then escaped. I have to say in all honestly I found, and indeed find him, quite frightening. Despite this I wanted to try to help him as I do all clients. He clearly suffered from mental illness – I do not know whether he still does. I believe that he had a genuine desire to see his children and I wanted to help him to achieve this. As a consequence of his conduct towards me I insisted that Mr Gray find new solicitors…’
The OSS wrote to the claimant asking him to provide a copy of the file and offered to provide financial assistance for postage and photocopying, but the claimant declined to provide the file. On 26 June 2002 the OSS case worker handling the case had prepared a report, a copy of which she sent to both the claimant and the defendant. In the report she sets out the background to the matter, she remarks at paragraph 6.12 ‘I have seen no evidence to suggest that the solicitor acted deliberately or maliciously in omitting to apply for Parental Responsibility, nor that he colluded with or was bribed by Mrs Chambers or her partner.’ At paragraph 7.1.15 she noted that due to the fact that the claimant retained the file, the defendant could not provide documentary evidence in support of his supposition that the claimant changed his instructions between the initial interview in July 2001 and the completion of the Form C2 in October 2001, although the claimant denies that he did change his instruction. At paragraph 7.1.20 she states ‘from the evidence I have seen, I am satisfied that the solicitor did not comply with Mr Gray’s instructions to apply for both Parental Responsibility and contact. The solicitor did not apply for Parental Responsibility. I therefore recommend that a formal finding of inadequate professional service be made in respect of this complaint.’
At paragraph 11 of the report it is noted specifically that the report does not constitute a formal decision of OSS but will be taken into account when the formal decision is made. The report informs the parties that it is in their interests to comment as fully as possible on the proposed recommendations so that the Adjudication Panel/Adjudicator may have regard to them when making the formal decision. The report concludes with a recommendation of a nominal award of compensation.
The Adjudicator made an interim decision dated 8 August 2002 directing that the complaints made by the complainant be stood over pending an opportunity to be given to the defendant to consider the file and to respond upon receipt of the file. On 22 October 2002 the Adjudicator made a decision which was forwarded to the parties. I do not have a copy of this. I am told that he decided that he could not make any formal finding in relation to the complaints because to do so would be unreasonable in the light of the fact that the file relating to the family matter had not been released by the claimant to the defendant or the OSS. However, in a letter from the OSS dated 28 October 2002 it was stated ‘if Mr Gray requests a review, we will send you a copy of the letter in which he sets out his reasons, for your comments’.
The claimant did request a review. The response, in the form of a letter dated 12 November 2002 from the defendant to the OSS, includes the defendant’s comments which give rise to the second of the words complained of. The letter reads as follows:
‘It has to be borne in mind that (a) I refused to act for Mr Gray at a very early stage after just one directions appointment because of his behaviour. There was nothing at all precluding him from applying for PR either himself or through his next solicitors. He suffered no prejudice whatsoever. (b) I cannot comment upon what Mr Gray says unless I have sight of my file. He has been asked to provide the same and has failed to do so. As it ultimately proved, Mr Gray’s prospects of every obtaining PR, given his conduct and the state of his mental health, were not good. It may be that it was for this reason that I did not formally apply. I cannot however say, unless I see the complete file with all my attendance notes. The contents on those attendance notes may in turn explain Mr Gray’s protracted refusal to release the file.’
Earlier letters, which are referred to in the ones cited above, and which are material, include the following:
a letter from the defendant to Mrs Chambers dated 7 August 2001 (a copy of which, the claimant told me, had been sent to him) reads as follows "I have now submitted the Application for Public Funding in this case so the certificate should be granted and proceedings issued for contact and Parental Responsibility this month…"
a letter dated 29 November 2001 addressed to the claimant, in which the defendant wrote, "…I feel that I should not call them [CAFCASS] to chase up your appointment because you do not want me to continue to act for you".
a letter dated 21 November 2001 from the claimant to the defendant, in which he sets out a number of complaints. The letter includes
‘what is obviously the case, is that you yourself wish no longer to have me as a client. My reasons for stating this were made abundantly clear yesterday, when – after a month since a High Court ruling that I should have my case investigated by a Family Court Reporter – I asked how long in your experience I might be expected to wait until I received at least a date for this investigation, and you replied by saying: "How long is a piece of string?" Further when I asked that should weeks become months and I still had not received even a date of the FCR investigation, would you pursue the matter through the courts? You replied: "no" And went on to state that you would be quite happy to allow indefinite time to elapse, even years, before I was given a FCR date, and you still would not act on my behalf, despite the obvious suffering such a situation would cause… Of course I shall be seeking another lawyer immediately, and I shall, needless to say, be complaining to the OSS about your conduct forthwith’.
THE OSS AND THE LAW SOCIETY
The OSS is a part of the Law Society. The submissions made by Miss Skinner, counsel for the defendant, included references to the explanation of the relevant bodies and procedures given in The Guide to Professional Conduct of Solicitors (eighth edition, 1999) in the form of The Guide On Line. She also referred to the applicable statutory provisions. At the hearing I gave permission under CPR 52.11(2)(b) (without opposition by the claimant) for the introduction of fresh evidence in the form of a witness statement of Alexander Vaughan. Mr Vaughan is a solicitor acting for the defendant, and he attached an approved note of information given to him by members of the OSS whom he had interviewed. As a litigant in person, the claimant could not be expected to give me the assistance which a qualified advocate would have been able to give. What follows must be read on the understanding that it was, therefore, not the result of the usual adversarial argument.
The OSS was set up to replace the Solicitors Complaints Bureau. It investigates and takes action on complaints and concerns about professional misconduct and inadequate professional services. The Law Society has regulatory functions in relation to solicitors which are set out in the Solicitors Act 1974. By s37A (as amended by the Courts and Legal Services Act 1990, s93(3), Sch 15) it is provided that ‘Schedule 1A shall have effect with respect to the provision by solicitors of services which are not the quality which it is reasonable to expect of them’. It is through the OSS that the Law Society performs these functions. The OSS is set up to work independently of the other arms of the Law Society. References in the legislation to the Council are to the Council of the Law Society (1974 Act s.87(1)).
By s.79 of the 1974 Act the Council may arrange for any of its functions (other than certain reserved functions which are not relevant to these proceedings) to be discharged by a committee of the Council, a sub-committee of such a committee or an individual. According to the evidence of Mr Vaughan, the Law Society General Regulations, reg 24, makes provision for a Compliance Board. The Compliance Board exercises the power of the Council regarding enforcement of rules, regulations and standards, complaints handling and the exercise of disciplinary functions over solicitors. The Compliance Board delegates these powers to the Adjudications Panel which is a sub-committee of the Board (but whose members are not necessarily members of the Board) and to certain members of staff, including a group known as the Adjudications Team. The Adjudications Panel consists of around forty people who are a mixture of members of the Council, solicitors who are not members of the Council and lay members. For the most part the Adjudications Panel exercise their powers on review from the Adjudication Team. The Compliance Board therefore delegates to both the Adjudication Panel and the Adjudication Team. The Adjudication Team has the same powers as the Adjudication Panel with the exception of the power to intervene in a solicitor’s practice which is reserved to the Panel. Other powers, largely to do with facilitating the progress of an investigation, such as calling in a solicitor’s file or examination, are delegated to other members of staff and senior advisers. It is by this route that the OSS comes to be involved.
The powers of the Council of the Law Society in relation to inadequate services are set out in Schedule 1A of the 1974 Act (as amended by SI 2000.644 art 2). It provides as follows:
"SCHEDULE 1A
INADEQUATE PROFESSIONAL SERVICES
Circumstances in which Council's powers may be exercised
1.--(1) The Council may take any of the steps mentioned in paragraph 2 ("the steps") with respect to a solicitor where it appears to them that the professional services provided by him in connection with any matter in which he or his firm have been instructed by a client have, in any respect, not been of the quality which it is reasonable to expect of him as a solicitor.
The Council shall not take any of the steps unless they are satisfied that in all the circumstances of the case it is appropriate to do so.
In determining in any case whether it is appropriate to take any of the steps, the Council may--
have regard to the existence of any remedy which it is reasonable to expect to be available to the client in civil proceedings; and
where proceedings seeking any such remedy have not been begun by him, have regard to whether it is reasonable to expect him to begin them.
Directions which may be given
2.--(1) The steps are--
determining that the costs to which the solicitor is entitled in respect of his services ("the costs") are to be limited to such amount as may be specified in the determination and directing him to comply, or to secure compliance, with such one or more of the permitted requirements as appear to the Council to be necessary in order for effect to be given to their determination;
directing him to secure the rectification, at his expense or at that of his firm, of any such error, omission or other deficiency arising in connection with the matter in question as they may specify;
directing him to pay such compensation to the client as the Council sees fit to specify in the direction;
directing him to take, at his expense or at that of his firm, such other action in the interests of the client as they may specify.
The "permitted requirements" are--
that the whole or part of any amount already paid by or on behalf of the client in respect of the costs be refunded;
that the whole or part of the costs be remitted;
that the right to recover the costs be waived, whether wholly or to any specified extent.
The power of the Council to take any such steps is not confined to cases where the client may have a cause of action against the solicitor for negligence.
Compensation
3.--(1) The amount specified in a direction by virtue of paragraph 2(1)(c) shall not exceed £5,000.
The Lord Chancellor may by order made by statutory instrument amend sub-paragraph (1) by substituting for the sum of £1,000 such other sum as he considers appropriate.
Before making any such order the Lord Chancellor shall consult the Law Society.
Any statutory instrument made under this paragraph shall be subject to annulment in pursuance of a resolution of either House of Parliament.
Taxation of costs
4.--(1) Where the Council have given a direction under paragraph 2(1)(a), then--
for the purposes of any taxation of a bill covering the costs, the amount charged by the bill in respect of them shall be deemed to be limited to the amount specified in the determination; and
where a bill covering the costs has not been taxed, the client shall, for the purposes of their recovery (by whatever means and notwithstanding any statutory provision or agreement) be deemed to be liable to pay in respect of them only the amount specified in the determination.
Where a bill covering the costs has been taxed, the direction shall, so far as it relates to the costs, cease to have effect.
Failure to comply with direction
5.--(1) If a solicitor fails to comply with a direction given under this Schedule, any person may make a complaint in respect of that failure to the Tribunal; but no other proceedings whatever shall be brought in respect of it.
On the hearing of such a complaint the Tribunal may, if it thinks fit (and whether or not it makes any order under section 47(2)), direct that the direction be treated, for the purpose of enforcement, as if it were contained in an order made by the High Court.
Fees
6.--(1) The Council may, by regulations made with the concurrence of the Lord Chancellor and the Master of the Rolls, make provision for the payment, by any client with respect to whom the Council are asked to consider whether to take any of the steps, of such fee as may be prescribed.
The regulations may provide for the exemption of such classes of client as may be prescribed.
Where a client pays the prescribed fee it shall be repaid to him if the Council take any of the steps in the matter with respect to which the fee was paid.
In this paragraph "prescribed" means prescribed by the regulations.
Costs
Where the Council take any of the steps with respect to a solicitor they may also direct him to pay to the Council--
the amount of the fee payable by the Council to the client under paragraph 6(3); and
an amount which is calculated by the Council as the cost to them of dealing with the complaint, or which in their opinion represents a reasonable contribution towards that cost.
Duty of Tribunal
Where the Tribunal--
is considering, or has considered, an application or complaint with respect to a solicitor; and
is of the opinion that the Council should consider whether to take any of the steps with respect to that solicitor, it shall inform the Council.
The Council's powers under this Schedule are exercisable in relation to a person even though his name has been removed from, or struck off, the roll and references to a solicitor in this Schedule, so far as they relate to the exercise of those powers shall be construed accordingly.’
In the evidence of Mr Vaughan it is explained that typically a complaint will go through a number of stages. One is the analysis and agreement of issues. Another is telling the parties what the process is, gathering information, and forming a view which may take the form of a report. A caseworker is in charge of this procedure throughout. The caseworker may refer a complaint to the Adjudicator once a view is formed that the statutory powers should be exercised. Throughout the investigation procedure Adjudicator and caseworker maintain separate functions and roles. No material is passed to the Adjudicator which has not been seen by both parties. The Client Relations Office deals with complaints of inadequate professional service. If there are associated allegations of misconduct then the Client Relations Office will take appropriate action. This may include a report to the Adjudicator who will make directions or recommendations regarding disciplinary action. The OSS may hold an oral hearing where the decision maker in the particular case decides that is necessary in the interests of fairness. Two or three oral hearings have been held in the last ten years.
In addition, there is the Solicitors Disciplinary Tribunal established under s.46 of the 1974 Act. This is a tribunal appointed by the Master of the Rolls. It has disciplinary powers which may be exercised on the application of any person. These powers include striking off, payment of a financial penalty, and costs. Applications are commonly made by the OSS. By the Solicitors (Disciplinary Proceedings) Rules 1994 rule 28, where an application is made otherwise than by the Law Society, the Tribunal may at any stage of the proceedings adjourn the application pending the consideration of it by the OSS, in case the OSS should see fit to lodge a further application against the respondent or to undertake on behalf of the original application the prosecution of his application. There is a right of appeal under s.49 of the 1974 Act from the Tribunal to the Master of the Rolls or the High Court, as provided in that section.
ABSOLUTE PRIVILEGE
Miss Skinner’s submission that the publications of the words complained of are protected by absolute privilege is put by her on three bases, or premises as she calls them:
The First Premise: the publications were statements made during inquiries made in connection with potential proceedings before the SDT (it being settled law that the proceedings of the SDT attract absolute privilege: Addis v Crocker [1961] 1 QB 11).
The Second Premise: the OSS is itself a tribunal exercising functions equivalent to a court of justice and the letters were published to it as part of its proceedings.
The Third Premise: as in the Second Premise, save that the letters were published during enquiries made in connection with potential proceedings before it.
The law in relation to absolute privilege was considered by the House of Lords in Trapp v Mackie [1979] 1 WLR 377. In that case Dr Trapp had been dismissed from his post by the Aberdeenshire Education Committee of which Mr Mackie was the then chairman. Dr Trapp petitioned the Secretary of State for an inquiry into the reasons for his dismissal. An inquiry was set up, and in the course of that inquiry Mr Mackie gave evidence. On the basis of that evidence Dr Trapp sued Mr Mackie for damages for loss, injury and damage which he claimed to have suffered as a result of ‘maliciously false evidence’.
In the course of his speech, at pp378-9 Lord Diplock said:
‘That absolute privilege attaches to words spoken or written in the course of giving evidence in proceedings in a court of justice is a rule of law, based on public policy, that has been established since earliest times. That the like privilege extends to evidence given before tribunals which, although not courts of justice, nevertheless act in a manner similar to that in which courts of justice act, was established more than a hundred years ago by the decision of this House in Dawkins v. Lord Rokeby (1875) L.R. 7 H.L. 744, where the unanimous answer of the judges to the question asked them by the House was adopted and the ratio decidendi of the judgment of the Court of Exchequer Chamber (1873) L.R. 8 Q.B. 255 was approved.
The kind of tribunal in which the evidence of witnesses is entitled to to absolute privilege was described by Lord Atkin in O'Connor v. Waldron [1935] A.C. 76, 81, as a tribunal which "has similar attributes to a court of justice or acts in a manner similar to that in which such courts act." That the "or" in this phrase is not intended to be disjunctive is apparent from the fact that Lord Atkin was confirming the accuracy of the law as it had been stated by Lord Esher M.R. in Royal Aquarium and Summer and Winter Garden Society Ltd. v. Parkinson [1892] 1 Q.B. 431, 442. Lord Esher, having spoken of "an authorised inquiry which, though not before a court of justice, is before a tribunal which has similar attributes", went on to explain that what he meant by similar attributes was "acting ... in a manner as nearly as possible similar to to that in which a court of justice acts in respect of an inquiry before it."…
No single touchstone emerges from the cases; but this is not surprising for the rule of law is one which involves the balancing of conflicting public policies, one general: that the law should provide a remedy to the citizen whose good name and reputation is traduced by malicious falsehoods uttered by another; the other particular: that witnesses before tribunals recognised by law should, in the words of the answer of the judges in Dawkins v. Lord Rokeby, L.R. 7 H.L. 744, 753 "give their testimony free from any fear of being harassed by an action on an allegation, whether true or false, that they acted from malice."
So, to decide whether a tribunal acts in a manner similar to courts of justice and thus is of such a kind as will attract absolute, as distinct from qualified, privilege for witnesses when they give testimony before it, one must consider first, under what authority the tribunal acts, secondly the nature of the question into which it is its duty to inquire; thirdly the procedure adopted by it in carrying out the inquiry; and fourthly the legal consequences of the conclusion reached by the tribunal as a result of the inquiry.’
I also bear in mind the observations of Lord Wilberforce in Roy v Prior [1971] AC 470 at p480. He said:
‘The reasons why immunity is traditionally (and for this purpose I accept the tradition) conferred upon witnesses in respect of evidence given in court, are in order that they may give their evidence fearlessly and to avoid multiplicity of actions in which the value or truth of their evidence would be tried over again. Moreover, the trial process contains in itself, in the subjection to cross-examination and confrontation with other evidence, some safeguard against careless, malicious or untruthful evidence…. Immunities conferred by the law in respect of legal proceedings need always to be checked against a broad view of public interest’.
Immunities from civil liability have also now to be considered in the light of Article 6 of the European Court of Human Rights. No submissions were made to me on this. Because the claimant has appeared in person, I have also considered for myself the decision in A v United Kingdom (Application no 35373/97) judgment 17 December 2002. That case concerned the absolute immunity or privilege protecting statements made in Parliament. The Court recognised (para 74) that such immunity can be compatible with Article 6 if conferring the immunity pursues a legitimate aim and if there is a reasonable relationship of proportionality between the means employed and the aim sought to be achieved. The Court held those conditions to be fulfilled in relation to the absolute privilege in issue.
I turn now to the requirements identified by Lord Diplock. The requirement that the OSS, which is in law the Law Society, be recognised by law is clearly met: see Sch 1A to the 1974 Act. The claimant does not dispute this.
The nature of the question into which the OSS had the duty to enquire was (or included) that posed in Sch 1A para 1(1), namely whether the professional services provided by the defendant in connection with the claimant’s matter in which he had been instructed had, in any respect, not been of the quality which it is reasonable to expect of him as a solicitor, and if appropriate, whether any to take any of the steps mentioned in para 2. The question was in the nature of and no different from the subject matter of civil suits in courts of justice. The OSS provides a more accessible form of justice in relation to complaints against solicitors than that which might otherwise be available through the courts.
The procedure adopted by the OSS was to make enquiries in the manner of a court. The officials of the OSS carry out an investigatory or inquisitorial role which is not carried out in the normal courts of justice. But that is of little significance. Courts can be inquisitorial.
The OSS has the power to compel production of documents. This power is given by s.44B of the 1974 Act which provides:
‘(1) Where the Council are satisfied that it is necessary to do so for the purposes of investigating… (c) whether any professional services provided by a solicitor were not of the quality which it is reasonable to expect of him as a solicitor... the Society may give notice to the solicitor … requiring the production or delivery to any person appointed by the Society, … of all relevant documents in the possession of the solicitor…’
Failure to give an explanation in respect to any matter relating to his conduct might have made the defendant subject to the sanction of refusal of a practising certificate: see the 1974 Act s.12(1)(e), (4).
It appears that the procedures adopted by the Society are designed to ensure compliance with the standards of fairness which may be applicable to courts of law, whether under the common law or under Article 6.
The possible legal consequences of the conclusion reached by the Society as a result of the enquiry, in so far as they included a determination of the question at issue, and relief in the form of compensation and costs, are indistinguishable from the consequences of the determination of a court of law.
The proceedings of the Society were not held in public, but that is not essential. Courts do not always sit in public. There were in fact no oral proceedings, but again that is not essential, since courts commonly proceed on written material alone. That the proceedings are not in public does not support the claimant’s case. It means that the words complained were not published otherwise than to the officials of the OSS who would also hear, and if necessary investigate, the claimant’s response to the allegations. And it means that a remedy in the form of a public libel action may well be worse than the disease.
The claimant points out that for false statements in courts of law there is a sanction in the offence of perjury. But there is also a sanction for giving false explanations to the Society (see s.12(1)(e) referred to above), as there is for failure to comply with directions (Sch 1A para 5(1)). I have no doubt that deliberately making false statements would also be regarded as misconduct and punishable as such by the Tribunal.
It follows that in relation to the letter dated 1st May 2002 the plea of absolute privilege is bound to succeed and the claimant’s action is bound to fail.
The position with regard to the letter of 12th November 2002 is said by the claimant to be different. He says he had no opportunity to answer it. However, that letter was sent in response to the letter of 8 November 2002 in which the OSS stated that the decision would be reviewed by the Adjudication Panel at the next available session. The claimant issued these proceedings one month later on 11th December 2002. At the time the letter of 12th November 2002 was written the proceedings of the OSS were still pending, and a copy of the defendant’s letter was sent to the claimant (they so informed the defendant by letter dated 14th November 2002). I see no reason why he could not have commented upon it. In any event, the letter was written as part of the proceedings. Accordingly the position is the same as in relation to the first letter complained of. Both are published under the immunity of absolute privilege.
This is the basis on which Master Leslie held that the claim was bound to fail. Like the Master, I do not find it necessary to make a decision on the other premises on which Miss Skinner relies. However, in deference to the detailed submissions she made to me, I will give my decision on them briefly.
For this part of her submissions Miss Skinner relies on Mahon v Rahn (No 2) [2000] 1 WLR 2150 for the proposition that absolute privilege extends to any matter incidental to the proceedings which is practically necessary for the administration of justice, including enquiries made in connection with potential proceedings before any tribunal the proceedings of which are protected by absolute privilege. As noted above, she submits, correctly in my view, that the SDT is protected by absolute privilege. The Law Society is a regulatory body comparable to The Securities Association considered in Mahon. It is true that in that case the words complained of were in a letter addressed to the regulatory body, whereas in the present case (as in Trapp) the words complained of are in a response to the complaint. To my mind that can make no difference. In my judgment Miss Skinner’s submissions under her other two premises are well founded, if I am wrong in the main conclusion I have reached above.
QUALIFIED PRIVILEGE
Miss Skinner urged me to make a decision on her application to strike out the claim on the basis that the defence of qualified privilege was bound to succeed, and that there was no case in malice fit to go to a jury. Essentially the claimant’s case in his letter of 13 December 2002 is that what the defendant said was false and he knew it was false. In the circumstance, it is not necessary for me to make a ruling on malice. I do not think any useful purpose would be served in my making a ruling, and I decline to do so.
FRAUD
The claimant’s case, as set out in his letter of 13th December 2002, is based on the letter of 7th August 2001 addressed by the defendant to Mrs Chambers, and copied to the claimant. The relevant parts are quoted in para 4 above.
The claimant relies on the form C2 not having included any mention of an application for PR. That was part of his complaint to the OSS, and is set out by them in their letter of 26 April 2002 quoted above. The C2 was sealed by the Court on 8 October 2001. The letter of 7th August 2001 was therefore not a false statement of fact about what the defendant had or had not done. The letter of 7th August 2001 states no more than an expectation: ‘… so the certificate should be granted and proceedings issued for the contact and Parental Responsibility this month’.
In so far as the claimant relies, as he says, on the proposition that ‘Ms Maskell of the Office for the Supervision of Solicitors upheld my complaint’, he is mistaken. The report in which his complaint was upheld was a preliminary stage in the proceedings, and the Adjudicator declined to take the same view. As the report itself says, at paragraph 11, it does not constitute a formal decision of OSS but will be taken into account when the formal decision is made.
I accept that where a person makes a statement as to his expectations or intentions, and that statement is made dishonestly, then it can found an action in fraud. But there is no evidence before me that that letter was written dishonestly. The fact (and it is an admitted fact) that the defendant did not apply for PR is not a basis for advancing a plea of dishonesty on his part in the writing of this letter. A plea of fraud is a very serious matter and cannot be allowed to remain on the record if there is no sufficient material to support it.
There is a further weakness in the claimant’s case on fraud. He has applied for PR, and, he tells me, the matter will come on for a hearing in September. The claimant does not rely on financial loss, but rather on the distress that he has suffered. He submitted to me that some punitive measure should be imposed. However, it is not the function of this court to impose penalties. That can be done in the complaint that has been made to the Law Society, but not in these proceedings. I accept that the dispute between the claimant and Mrs Chambers has caused the claimant distress. I also accept that any delay or reverse in the proceedings relating to the family is bound to be distressing. But the case on damage suffered as a result of any false statement as to the defendant’s expectation made in the letter of 7th August 2001 is very weak. It is not necessary to consider whether this would be a separate ground for striking out that claim, or for summary judgment on it under CPR Part 24. I have already concluded that the claim has no prospect of success because there is no basis for the allegation of fraud or dishonesty.
Accordingly I dismiss this appeal, and allow the defendant’s application that the claim in fraud be struck out.